Thursday, January 14, 2010

Year 170: Emissions Trading Scheme amendments

Just before the climate change talks in Copenhagen at the end of last year, Parliament passed, under urgency, the Climate Change Response (Moderated Emissions Trading) Amendment Act. This Act made major changes to the Emissions Trading Scheme (ETS) that had been set up by the previous government. Many people more qualified for the task than me have analyzed the environmental impact of those changes. The environmental impacts are not without Treaty consequences. However, I would, at least at first, like to consider some of the more explicit Treaty of Waitangi implications of this legislation as part of my assessment of the health of the Treaty of Waitangi relationship in its 170th year.

The changes to the ETS were highly controversial. There was little agreement as to what changes would be beneficial amongst the parties represented on the select committee that considered the Bill. In the end, the National Government secured support from the Māori Party in order to pass this legislation. The Māori Party’s support for the legislation was obtained after the Government agreed to twelve specific measures to address the Māori Party’s concerns about the Bill. These measures touch on a range of social, environmental, and economic concerns, but there are two which focus expressly on Treaty of Waitangi issues. The third item on the published list of agreed measures is as follows:

3. Treaty Clause in ETS legislation

The Government will support an agreed SOP, moved by the Māori party during the Committee stages of the Bill, that recognises the Treaty of Waitangi. This provision will specifically set out the ongoing decisions on which Crown has an obligation to consult. This will include regulations

covering the following:

Pre-1990 forest land allocation

Fisheries sector allocation

Allocation to agriculture

Point of obligation for agriculture

Setting of targets under the Act

Reviews of the New Zealand Emissions Trading Scheme

As a consequence, the ETS legislation now includes a section which aims to give effect to the principles of the Treaty of Waitangi and specifically requires consultation with Māori on particular issues before regulations may be made under the Act in relation to those issues. This section also requires that when the ETS is reviewed, the review panel must contain at least one person with knowledge, skill, and experience relating to the Treaty of Waitangi and tikanga Māori, the review panel must consult with Māori, and the terms of reference for that panel must include reference to the principles of the Treaty of Waitangi.

The fourth item on the list of agreed measures also relates explicitly to the Treaty, or at least to Treaty settlements:

4. Treaty settlements pre-ETS where iwi unknowingly disadvantaged

It is agreed that a solution is needed to resolve the issues raised by Ngāi Tahu that the Crown did not meet its information disclosure requirements of their Treaty Settlement in respect of the likely impact of an ETS on pre1990 forest land. Similar issues are raised by Waikato-Tainui, Te Uri o Hau, Ngati Awa and Ngati Tuwharetoa (Bay of Plenty).

The Crown, while not accepting fault, has attempted to resolve this issue by offering a Conservation contract on an area of Crown land comparable to that affected for a limited period to avoid litigation. An agreement in principle has been reached.

This all looks pretty positive for the health of the Treaty relationship. At least on the surface.

The problem is that the changes to the ETS undermine some important aspects of the Treaty agreement, even as the legislation ostensibly protects Treaty interests. This is where the environmental impact becomes relevant to the Treaty. It seems clear that these changes will only weaken the ETS. That is, the detrimental effects on the environment will be greater under the amended scheme than the ETS that was established by the previous government. The environmental effects are likely to be significant and it should be noted that public health experts have expressed concern that Māori will be one group that is likely to be bear a disproportionate burden as a consequence of those effects. The amendments to the ETS will damage the environment and Māori communities’ relationship with the environment, both of which can be seen to be the subject of guarantees in the Treaty. It is absolutely right that the principles of the Treaty be acknowledged in this legislation and provision be made to protect the value of Treaty settlements. But this seems to have come at a huge cost. It is hard to see how enabling greater damage to the environment itself can be advancing the protection of our taonga (treasured possessions) or our kaitiakitanga (ethic of stewardship), which is so closely connected with the Treaty guarantee of tino rangatiratanga.

Ahi-kā-roa

Ahi-kā-roa literally means "the long-burning fires". It is a Māori concept that encapsulates the idea that decision-making authority and rights associated with land are maintained through the connection to that land and the fulfillment of obligations in relation to it.

About Me

I am of Ngāti Kahungunu and Te Aitanga-a-Māhaki descent. I am a lecturer at the Faculty of Law, Victoria University of Wellington. My primary research interests relate to the Treaty of Waitangi and indigenous legal traditions. Before joining the faculty in 2006, I worked in a number of different roles at the Waitangi Tribunal, Māori Land Court, and the Office of Treaty Settlements. I have recently completed a PhD through the University of Victoria, British Columbia. My dissertation is entitled 'The Treaty of Waitangi Settlement Process in Māori Legal History'. I am the Co-Editor of the Māori Law Review